While the snow turned to slush on Asheville’s streets, City Council members got wind of a lawsuit: Henderson County has sued the city, Buncombe County and the Regional Water Authority over a tangled property exchange that all parties had agreed to back in the mid-1990s.
The lawsuit, which made the front page of the March 20 Hendersonville Times-News, concerns deed restrictions City Council placed on the parcel Henderson County received in the swap.
That morning, the Water Authority had held its monthly meeting but failed to make a quorum when a mere four members of the nine-person board braved the sudden snowfall to attend. The lawsuit wasn’t mentioned during the short meeting, although RWA Chair Jack Tate — a Henderson County appointee — had the Times-News in hand and showed it to Asheville appointee J. Lewis Daniels. And two city employees who were there to represent the city’s interests — Water Resources Director Tom Frederick and City Attorney Bob Oast — carried with them notebooks labeled “regional water agreement.”
It was in that landmark agreement involving Buncombe, Henderson and Asheville that the city agreed to swap almost 140 acres on the French Broad River near Bent Creek, the Blue Ridge Parkway and the N.C. Arboretum for land on the Mills River, where the RWA built a new water-treatment plant.
By the time Mayor Leni Sitnick banged the gavel to start City Council’s March 20 work session, she’d already known about the lawsuit for about four hours. Sitnick also remarked, “Neither snow nor slush … nor any of those other [things] can stop this City Council.”
Sitnick recommended that Council table the number-two item on the day’s agenda — a planned discussion of the water agreement and the Water Authority’s recent push for autonomy. She also thanked Daniels and Ted Patton — city appointees to the RWA board — for having made it to Council’s work session despite the weather (former City Council member Tommy Sellers is the city’s third appointee). In light of the lawsuit, Oast had suggested nixing the discussion, Sitnick said.
With no comment, Council members agreed to table the issue, giving no indication as to when they would revisit it. Later in the meeting, they went into closed session to discuss the lawsuit.
City leaders agreed to the land swap in 1995, but it wasn’t until 1999 that Council authorized the transfer of the deed — and then only after placing restrictions on how the land could be used. At the July 13, 1999 meeting, Council member Chuck Cloninger suggested that the city restrict the deed to prevent the property’s being used for something other than a sewage-treatment plant. And the 1995 agreement had already stipulated that if Henderson County didn’t develop a sewage plant on the site within 10 years of the land swap, or deed the property over to an agency that would, the property would revert to Asheville.
At that same Council meeting, then-Council member Earl Cobb suggested buying back the property, then valued at $1 million. But Council member Ed Hay noted that it was unlikely that Henderson County would build a sewage plant, so the city would probably get the land back anyway. And Council member Barbara Field pointed out that the Metropolitan Sewerage District had no plans to build a treatment plant on the site, either.
A month later, on Aug. 23, 1999, the city registered the deed transfer — with the land-use restrictions.
The ETJ race
Who will beat the zoning clock?
Asheville City Council members have announced that they plan to extend the city’s extraterritorial jurisdiction into three unincorporated areas of Buncombe County: an area to east, toward Fairview; an area along Long Shoals Road (including future extensions of the Biltmore Park residential subdivision); and a large area bordered by Sardis and Brevard roads corridors that has “industrial potential,” according to city staff reports.
Extraterritorial jurisdiction allows the city to enforce basic zoning and development regulations in areas that may later be suitable for annexation. The areas must be unincorporated and within one mile of the city limits.
“Some people have said, ‘Why are we doing this now? What’s the hurry?’” Asheville Planner Gerald Green told Council members at their March 20 work session.
Meanwhile, Buncombe County officials recently suggested a kind of pre-emptive strike: applying minimal zoning rules to all the unincorporated areas within one mile of the city limits. The county commissioners have scheduled a March 28 public hearing on the issue, reported Green.
But the city isn’t exactly moving fast: The last major ETJ extension was in 1989, he added. And though former Assistant City Manager Doug Spell had noted in 1999 that the city should be more aggressive about annexing urbanized areas bordering Asheville, “That was two years ago, and we’re just now moving on [it],” Green continued.
He proposed notifying the approximately 2,500 affected property owners in April and then scheduling a May 8 public hearing.
Council members posed a few questions, starting with Charles Worley: If the county zones the proposed areas, does that mean Asheville can’t apply the ETJ? Yes, Green replied: “It’s a matter of who gets there first.” But Asheville could still annex those areas eventually, even if the county zoned them to block the ETJ, he pointed out.
Council member Barbara Field remarked that she has “no problem” with the county zoning idea — unless it’s meant merely as “a defensive measure” against the city. “We need to work together,” said Field.
And Mayor Sitnick brought up one of Council members’ favorite hypotheticals: Could Asheville one day annex Biltmore Estate? “I’m always amazed at this big hole in the middle,” said Sitnick, speaking about a map that showed the city limits and the nearly surrounded Biltmore grounds, winery, restaurant, main house and new hotel.
And though Green conceded that city officials may one day have to “sit down with the Cecils [the estate's owners],” he added, “I may be long retired” by that time.
A portion of the old estate, owned by Biltmore Farms, is already being gradually developed for residential and commercial use, such as the Biltmore Park subdivision, which is being voluntarily annexed as sections are built, Green mentioned.
After a bit more discussion, Council members gave the go-ahead for scheduling the notifications and public hearings. “Tally ho,” said Sitnick.
And Council member Brian Peterson suggested that staff hold public-information meetings in the targeted areas to give residents “a measure of self-governance.”
Stop the litter
For years, one of Mayor Sitnick’s pet peeves has been the “visual blight” of litter in general and, more specifically, the illegal signs posted on utility poles all over town. At her request, Asheville Public Works Director Mark Combs presented two alternatives for dealing with the latter problem: Set up a tough enforcement system to track down and fine offenders, or designate a full-time staff member to remove signs.
Both options would cost money at a time when state and local governments face a budget crunch, Combs outlined. “The bottom line is the cost of adding staff and equipment,” he told Council members. The enforcement option would cost an estimated $55,000 annually; the removal option would cost $38,000 per year, Combs reported.
In a lengthy discussion, Council members steered away from the enforcement option, arguing that it would target the relatively harmless lost-dog and yard-sale signs just as much as the commercial work-at-home, lawn-maintenance, music-performance and diet-fad signs stapled, tacked and nailed onto utility poles in city of rights of way.
“For me, it’s hard to differentiate between the two [types of signs],” said Council member Worley, a lawyer.
Field and Hay also expressed reluctance about going after residents posting lost-dog signs and the like.
But Sitnick declared: “I want to go for the guillotine. … We have people who are breaking the law and getting away with it.” Besides the signs’ unsightly appearance, the materials used to attach them to the poles can be dangerous to telephone- and power-company workers, she said. And the commercial signs “go up faster than we can take them down. … There’s a principle here that goes beyond budgetary constraints.”
In the past year, city sanitation crews and planning staff have removed more than 9,000 such signs, Combs reported.
From a practical point of view, interjected Vice Mayor Chuck Cloninger, enforcement would be time-consuming and probably not very effective. He leaned toward the removal option.
So did Field, who mentioned that a lack of options for advertising upcoming performances may contribute to the proliferation of band signs on downtown poles.
Urging a “combined effort,” Sitnick suggested working with Bell South and CP&L.
And City Manager Jim Westbrook reported that either option would have to be funded through the city’s contingency budget.
City Attorney Bob Oast mentioned that the highest penalty state statutes allow is $50.
Council members took no formal action on either proposal.